Reproductive Emergency

Life is one long emergency for most advocacy groups--whose members are apt to
be united by the belief that they're besieged. To an outsider who lacks their
political passions, however, they seem less besieged than overwrought. So casual
supporters of abortion rights may be unimpressed when the National Organization
for Women (NOW) declares an official state of emergency in the battle over
reproductive choice. The "Emergency Action for Women's Lives," targeting the
U.S. Senate, is being launched with an April 22 rally in Washington, D.C. So
far, this campaign doesn't seem to have generated much excitement or publicity.
But the more you know about threats to choice, the more you share NOW's sense of
urgency.

A majority of Americans support abortion rights, but rather queasily, and the
anti-abortion and pro-choice movements have been stalemated for several years.
Pro-choicers narrowly defeated efforts to criminalize particular abortion
procedures (in the guise of bans on mythical "partial birth" abortions), and they
recently won a Supreme Court decision striking down the nonconsensual drug
testing of pregnant women. But over the years, restrictions on minors' rights
have been upheld, along with restrictions on the use of public funds to finance
abortions and on the rights of publicly funded doctors even to talk about
abortion with their patients.

Attacks on the basic constitutional right to obtain an abortion outlined by Roe v. Wade have failed, just barely, but access to abortion has declined:
Violence against abortion providers is a strong disincentive to doctors, and many
are no longer being trained to perform abortions anyway. In Massachusetts a major
Boston hospital has shut down a late-term abortion program that served women who
needed to terminate pregnancy after 14 weeks because of serious health problems.
"This is reminiscent of the problems of 30 years ago," the chief of obstetrics
and gynecology at Beth Israel Deaconess Medical Center told The Boston
Globe. Anti-abortion activists have managed to make the legality of abortion
irrelevant for many women by making the availability of abortion scarce.

This bad situation is about to get worse. Encouraged by the ascension of
George W. Bush, anti-abortion activists are renewing their efforts to erode
reproductive rights incrementally. They're already tasting victory: The new
president, grateful and obliged to opponents of abortion rights, moved swiftly to
deny U.S. aid to international family-planning agencies that merely provide
abortion counseling. President Bush also favors stringently limiting access to
mifepristone (RU-486), which the FDA recently approved; and Secretary of Health
and Human Services Tommy Thompson has signaled his willingness to order a new
review of the drug. Along with other anti-abortion bills recently reintroduced by
Republicans, Congress is considering placing limits on RU-486.

The federal Unborn Victims of Violence Act exemplifies the strategy of
destroying reproductive choice without ever attacking it directly. Drafted with
the assistance of the National Right to Life Committee and introduced in Congress
by two Republicans, Representative Lindsey Graham of South Carolina and Senator
Mike DeWine of Ohio, this bill would make it a federal crime to injure or kill a
fetus during an attack on a pregnant woman, at any stage of fetal development
(and even if the attacker were unaware of the pregnancy). It's not a novel
concept. Fetal-protection laws are in place in a majority of states, although
some consist of sentence-enhancement schemes in cases involving fetal injury or
death--an approach that expresses the public's particular abhorrence for attacks
on pregnant women without necessarily undermining their reproductive rights.

But protecting pregnant women is not what anti-abortion advocates in Congress
have in mind. The Unborn Victims of Violence Act is intended to confer personhood
and independent legal rights upon a fetus. In other words, it would incorporate
the theoretical underpinning of the anti-abortion movement into federal law.

The Teen Endangerment Act, introduced by Republican Congresswoman Ileana
Ros-Lehtinen of Florida, also favors the presumed interests of the fetus over the
interests of the pregnant woman (or, in this case, pregnant girl). It would make
felons out of family members such as grandmothers, aunts, or older sisters who
transport a minor across state lines for an abortion if the girl cannot obtain
parental or judicial permission for an abortion in her home state.

Encouraging communication between parents and kids is a worthy goal, but laws
like this do not further it. Rates of parental involvement in teen abortions are
about the same in states with parental-consent laws as they are in states without
such laws. (Pregnant teens usually do seek the help of at least one parent, and
the rate of parental involvement in abortions is especially high: 90 percent for
girls 14 and younger.) What will be the effect of a federal law that punishes
family members other than parents for helping pregnant teenagers? This is one law
that threatens to live up to its title: If it's enacted, the Teen Endangerment
Act surely will endanger teens by encouraging them to obtain illegal abortions,
continue high-risk pregnancies, or seek help from hostile, violence-prone
parents. (One-third of teenage girls who do not talk to their parents about
abortions have previously been the victims of family violence.)

Battles over anti-abortion measures like these are important, but they are mere
skirmishes compared to the upcoming fight over the next Supreme Court nominee.
Justice Sandra Day O'Connor, who has been crucial in maintaining the 54 majority
in favor of Roe, is expected to retire soon. Bush will, no doubt, nominate
a judge opposed to abortion rights, and if he or she is confirmed, Roe v.
Wade will be overruled as soon as the next case challenging it wends its way
to the Court.

The crusade to make abortions illegal and unsafe (they are unlikely ever to be
rare) does pose political risks for Republicans. If outright abortion
prohibitions and a reversal of Roe v. Wade were popular, Bush would not
have cloaked his support for them during the campaign. Female voters deprived of
all abortion rights could become a more potent political force than are male
voters who fear being deprived of their guns. If reproductive choice falls victim
to the Bush administration, the administration could in turn fall victim to
reproductive choice. But once revoked, rights are not quickly or easily restored;
and the Supreme Court outlives the administrations that shape it. A Bush Court
would survive, while women and girls would die from illegal abortions. There are
surely better ways to win elections.

About the Author

Wendy Kaminer is a former senior correspondent for The American Prospect and a contributing editor at The Atlantic Monthly. She also serves on the national board of the American Civil Liberties Union.

A lawyer, social critic, and former Guggenheim Fellow, she writes about law, liberty, feminism, religion, and popular culture. Her latest book is Free for All: Defending Liberty in America Today. Other books she has written include Sleeping with Extra-Terrestrials: The Rise of Irrationalism and Perils of Piety; True Love Waits: Essays and Criticism; It's All the Rage: Crime and Culture; I'm Dysfunctional, You're Dysfunctional: The Recovery Movement and Other Self-Help Fashions; and A Fearful Freedom: Women's Flight from Equality. Kaminer's articles and reviews have appeared in many other publications, including The New York Times, The Wall Street Journal, The Nation, and Newsweek, and her commentaries have aired on National Public Radio.

Before embarking on her writing career, Kaminer practiced law as a staff attorney in the New York Legal Aid Society and the New York City Mayor's Office.